The following recent developments at the Judicial Panel on Multidistrict Litigation provide some practical pointers when facing litigation in multiple jurisdictions.
MDL Petition to Watch: Driving into an MDL?
In an MDL petition scheduled to be heard at this month's Panel hearing session and arising from a series of FLSA collective actions filed by drivers in the ground-transportation industry, the Panel is presented with a number of procedural arguments against MDL transfer:
- Bankruptcy. One of the named plaintiffs filed for bankruptcy after filing his FLSA action and listed the action as a potential asset. In opposing MDL transfer, the defendant notes that this plaintiff's "standing to sue and his adequacy as a representative in the proposed 'transferee' case are questionable at best."
- Procedural Gamesmanship. In opposing MDL transfer, the defendant notes plaintiff's "purported concern" that absent an MDL, different judges may issue conflicting decisions regarding "collective action certification." Defendant suggests that this may actually be a concern of a "race to the courthouse" by another plaintiff's attorney who was the first to file a motion for nationwide certification. The Panel has observed that it would "certainly find less favor with" an MDL motion which "appears intended to further the interests of particular counsel more than those of the statute."
MDL Practice Pointer
Think procedurally! If you are opposing an MDL motion, in addition to substantively opposing an MDL on the ground that there is an absence of any common facts or that centralization would be inefficient, consider whether there are unique procedural aspects in any of the cases (e.g., bankruptcy) or "gamesmanship" behind the MDL (e.g., procedural strategic reason to benefit one counsel over another) which may warrant denial of the MDL motion.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
